North Carolina lawyers recently filed this lawsuit. As set out in the Complaint, a pine tree in a residential back yard grew over the years up and around an electric power line. A six year old neighbor boy from next door was visiting with his mother. He and the six year old girl who lives in the house went outside to play in the yard, and the boy climbed the tree. The little girl playing with him came into the house and told the boy’s mother that the boy was pretending to be asleep up in the tree.

The mother went out and called up to her son, who did not move, so she climbed the tree to his limp body, screaming his name. An ambulance took her son to the hospital, but he was dead from electrocution.

There was a 7,200 volt uninsulated electric power line running through the tree or near enough to reach. The 6 year old boy had no idea of the danger.

Complaint as filed, page 1

As readers of this website know, there are electrical safety standards to protect people from the danger of high voltage electric power lines. The National Electrical Safety Code requires the electric power utility companies to keep tree branches cut back from their power lines, to prevent just this sort of accident. It appears from the Complaint that a violation of the National Electrical Safety Code caused the death of an innocent victim.

For a copy of the Complaint as filed in the Court, in Adobe pdf format, click here. But be warned, reading the Complaint will bring tears to your eyes.

My sympathy to the family and friends and neighbors of the boy who was killed.

A contractor and three of its employees are facing charges:

“The charges include failing to provide a safe system of working, training, supervision, risk assessment and resources; failing to test circuits and wires into a distribution board before they were made live; and failing to ensure the board was not live while employees worked on circuits connected to it.”

The defendants deny the charges. The trial is expected to last 3 weeks. The BBC news story is available here.

The patient had stepped on a 500 volt exposed conductor, and his footwear was wet. His muscles contracted but after about 30 seconds he was able to pull himself free.

The surgeons believe that his genetic weakness would probably have not caused the blood vessel problem and resulting leg bone problem, except for the electric shock.

He underwent total hip replacement. The femoral head, that is the top end of the thigh bone, was examined and showed that the blood vessels had died.

“More than five years after the injury the patient’s [total hip replacement] was functioning well and the opposite hip remained clinically and radiologically normal.”

The surgeons commented on the unfortunate typical results as the voltage increases.

“The consequences of electrical injuries to bone may present immediately or after a delay of months to years; in addition, the bony injuries may exist near the entry point, or at a point distant from it.

Most reports to date relate to high-voltage injuries (i.e. currents over 1000 V). These currents take a direct path between entry and exit point. Blood vessels and nerves are severely damaged as are muscle and skin damage, resulting in amputation in over 50% of cases. …

Low-voltage currents (< 1000 V) behave differently and follow the path of least resistance along nerve and blood vessels. Bone itself is a poor conductor and does not carry a large enough current to sustain direct damage.”

The article, by L. Vanderstraeten and M. Binns, is titled Osteonecrosis of the Femoral Head Following an Electrical Injury to the Leg. It was published in the Journal of Bone and Joint Surgery, and is set out in a RedOrbit.com blog post.

“… the Pentagon has previously reported that 13 Americans have been electrocuted in Iraq, many more have been injured, some seriously, by shocks…”

According to the article, qualified electricians have tried to get the situation corrected, but to no avail.

To read about this outrageous situation, refer to the article entitled Electrical Risks at Iraq Bases Are Worse Than Said.

A recent personal injury case involved electrical arcing that hurt subcontractor employees. The US District Court for the District of Colorado issued an opinion in LEDBETTER et al. v. WAL-MART STORES, INC. et al., Civil Action No. 06-cv-01958-WYD-MJW. The opinion commented on when an injured worker’s claim will be defeated by the “statutory employer” doctrine. The Court considered both Colorado law and Oklahoma law. The analysis discussed when employees of a subcontractor can sue the contractor or other parties at fault.

The subcontractor employees were helping to perform infrared scanning in a Wal-Mart store. The scanning is intended to reveal overheating.

To perform the IR Imaging, the electrical equipment must be energized and exposed to the camera. Any face-plates covering the electrical conductors must be removed.

Defendant Eaton was performing an IR scan at a Wal-Mart store. An Eaton engineer was acting as the camera operator. The Plaintiffs, employees of a subcontractor, were the assistants pulling panel covers. The Plaintiffs were covered for workers’ compensation purposes by their direct employer, the subcontractor to Eaton.

Plaintiffs were replacing the covers on a piece of switchgear when an electrical arc occurred between the energized switchgear and the panel cover they were replacing. Plaintiffs were injured in the arc flash.

Eaton moved for summary judgment, and argued that the Worker’s Compensation Act bars a subcontractor’s employee from suing a general contractor for a work injury.

The parties disagreed about whether Colorado or Oklahoma law should be applied. However, the Judge found issues of fact that preclude summary judgment under either Colorado or Oklahoma law. He went on to comment on the workers comp defense of “statutory employer”.

Colorado Law

The Colorado Supreme Court has held that the primary purpose of the workers’ compensation act is to provide a remedy for job-related injuries, without regard to fault. The statutory scheme grants compensation from the employer without regard to negligence. In return, the responsible employer is granted immunity from common-law negligence liability.

For a third party, that is a general contractor, to be given this immunity even though the injured worker was on another company’s payroll, the general contractor must be a ‘”statutory employer” under the workers’ compensation act.

The test for whether an alleged employer is a “statutory employer” is whether the work contracted out is part of the employer’s ‘regular business’ as defined by its total business operation. In applying this test, courts consider the elements of routineness, regularity, and the importance of the contracted service to the regular business of the employer.
In applying the regular business test, Colorado courts have occasionally explored the degree of control the alleged statutory employer retains over the employee. Employer control may be probative of the importance of the contracted services to the alleged employer. However, the statutory employment relationship is not predicated on a finding of employer control; rather, a showing that the alleged statutory employer maintains control over the employee represents only one method of demonstrating the factor of importance.

Oklahoma Law

Under Oklahoma law, the principal for whom a contractor is performing work is immune from tort liability for injuries suffered by the contractor’s employees in the course of that work, if the work performed by the contractor was “necessary and integral” to the principal’s operations. Accordingly, the principal is the statutory employer of the injured employees and is liable to the injured employees only under the Oklahoma Workers’ Compensation Act. Tasks performed by a contractor are a “necessary and integral
‘ part of a principal’s operation when they (a) are directly associated with the day-to-day activity carried on by the [principal's] line of trade, industry or business or (b) would customarily be done in that line of business.

The Court first inquires whether the contract work is specialized or non-specialized. This takes into consideration whether the level of skill, training, and experience required to perform the work at issue is not ordinarily possessed by workers outside the contract field.

If the contract work is specialized per se, it is not part of the principal’s trade, business, or occupation.

If the contract work is not specialized per se, the court then compares the contract work with the principal’s trade, business, or occupation to determine whether the contract work could be considered a part thereof. Finally, the court must inquire whether the principal was actually engaged at the time of the injury in the trade, business, or occupation of the hired contractor.

In the case at issue, there was no evidence that the contracted work was specialized per se. So the Court moved on to the second stage of the analysis. Several factors are: (a) Is the contract work routine and customary? That is, is it regular and predictable? Nonrecurring or extraordinary construction and repairs are usually held outside the scope of the statutory doctrine. (b) Does the principal have the equipment and/or manpower capable of performing the contract work? This sub-species of the specialty inquiry focuses on determining whether the contract work, as it relates to the hirer, is ordinarily handled through employees. (c) What is the industry practice relative to the contract work? The factors were developed by the case law to answer the overriding question of whether the contract work is, in that business, normally carried on through employees rather than independent contractors.

Finally, the third stage of the analysis is whether the principal hirer was engaged, at the time of the injury, in the trade, business or occupation of the hired contractor.

Statutory Employer Defense Does Not Necessarily Apply

The Judge held

” … I find that the Plaintiffs demonstrated through their response to Eaton’s motion for summary judgment that there are genuine issues of material fact regarding whether Eaton was a statutory employer under either Colorado or Oklahoma law.

First, there is a genuine issue of material fact as to whether Eaton always uses subcontractors as part of its regular business operation for necessary and integral tasks or whether this type of work was ordinarily handled by Eaton employees. This is unclear from the evidence presented, and this issue is central to the analysis of whether Eaton was a statutory employer under either Colorado or Oklahoma law.

Second, there is conflicting evidence as to what degree of control Eaton exercised over the contracted workers. At a minimum, I find that these factual disputes are open to different interpretations which impact Eaton’s argument in its motion. Thus, summary judgment is not appropriate. … there are genuine issues of material fact regarding whether Eaton is a statutory employer, and thus summary judgment is not proper.”

Since summary judgment was denied, the case will continue so that the jury can decide the case.

This website has a related post on liability beyond workers compensation.

In March, the United States District Court for the Eastern District of Pennsylvania issued an opinion in Klein v National Railroad Passenger Corp. [Amtrak], case no. 04-955.

Two boys had been skateboarding, and climbed on top of a laddered freight car owned by defendant Norfolk Southern Corporation (”Norfolk Southern”) while it was parked for the weekend on a tail track owned by Amtrak in Pennsylvania. Once on top of the railcar, the two boys were severely burned by arcing electricity from a high voltage catenary wire which ran along the tail track and above the cars.

The case against Amtrak was a premises liability claim, presented to the jury on two theories: (1) the duty of a landowner to a trespasser; and (2) whether the attractive nuisance doctrine applied.

Under Pennsylvania law, a landowner’s duty of care to one who enters upon the land depends upon whether that person is

• a trespasser (no permission),
• a licensee (permission to enter), or
• an invitee (invited for the benefit of the landowner).

The boys were trespassers on land owned by Amtrak, since no one had given them permission to go onto the track or climb up on the rail car to look around. The duty generally owed by a landowner to a trespasser is to refrain from willful or wanton misconduct.

Amtrak should have realized that pulling the laddered Norfolk Southern car under the energized catenary line, in a densely populated mixed residential-commercial-industrial area, was an unreasonable act in disregard of a known risk that would likely put someone in grave peril.

To prove “wanton misconduct” it was necessary for the plaintiffs to show that Amtrak knew of the risk that led to their injuries. The jury was given information hat Amtrak appreciated the specific risk of harm to persons like the injured boys:

• Evidence of pervasive graffiti in the area,
• Reports of other trespassers,
• The presence of numerous schools in the vicinity,
• The urban setting suggesting that pedestrian traffic was well known, and
• Amtrak’s long time awareness that teenage boys are inclined to climb parked boxcars.

Amtrak knew that trespassers were regularly on its tracks and that teenage boys were inclined to climb to the top of parked boxcars.

The presence of high voltage lines above a parked railroad car and the phenomenon of arcing electricity are not well known to the public. These dangers are not obvious and Amtrak provided evidence that the dangers are not obvious. Amtrak regularly educates, and re-educates, its experienced employees about the dangers of catenary wires. The dangers were under-appreciated so Amtrak provided on-going training to experienced employees.

Plaintiffs’ lawyer introduced a government report by the Federal Railroad Administration and the Federal Highway Administration:

“Catenaries are the overhead wiring systems used to carry energy to electric locomotives. Catenary accidents may or may not involve trains. All of the catenary accidents in the sample data involved juveniles and all resulted in serious injury or death. Minor catenary accidents are rare because all of them result in severe electric shock, and there is a strong probability that a fall from the top of a boxcar will follow. While there may be a general awareness of danger associated with catenary systems as with power lines, few people outside the railroad industry are aware that the electrical potential is so great that shocks can result without actual contacting of the wire.”

Amtrak claimed that the plaintiffs’ accident was unforeseeable. Whether Amtrak had reason to know that the catenary wires posed an “unreasonable” risk of bodily harm and the question of foreseeability were questions for the jury. Evidence supported the finding that Amtrak was aware of that risk:

• Plaintiffs introduced evidence of Amtrak’s attorneys writing about similar accidents and anticipating that more accidents would occur again;
• There was evidence of the federal government warning railroads about such risks; and
• There was evidence of Amtrak’s renegotiating its liability agreement with Conrail to spread the risks of these boxcar catenary wire burn cases.

The jury heard testimony that neither plaintiff knew what catenary wires were or understood their risks, especially the risk of arcing. Their families had not discussed high voltage with the boys. Neither boy had been taught in school about catenary lines or high voltage.

The Jury awarded punitive damages that were upheld by the Judge. The opinion outlined the requirements for a punitive damages award under Pennsylvania law.

Pennsylvania has adopted Section 908 of the Restatement (Second) of Torts and accompanying comments regarding the imposition of punitive damages:

“Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others, in assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff, that the defendant caused or intended to cause and the wealth of the defendant. Restatement (Second) of Torts Section 908(2).”

Under the rule in the Restatement, punitive damages may be awarded when the defendant acted in an outrageous fashion due to either “the defendant’s evil motive or his reckless indifference to the rights of others.” Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1096 (Pa. 1985) (rev’d on other grounds). In Hutchison v. Luddy, 582 Pa. 114, 870 A.2d 766, 770 (Pa. 2005), the Court found that punitive damages may be appropriately awarded only when the plaintiff has established that the defendant has acted in a fashion “so outrageous as to demonstrate willful, wanton or reckless conduct”).

A defendant acts recklessly when his conduct creates an unreasonable risk of physical harm to another and such risk is substantially greater than that which is necessary to make his conduct negligent. A showing of mere negligence, or even gross negligence, is not enough to prove that punitive damages should be awarded. SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702, 705 (Pa. 1991).

Under these cases the Court held that the evidence supported a punitive damages award.

The Judge was not impressed with the defendant companies’ argument that the jury verdict should be disregarded, and he wrote

“Norfolk Southern obviously finds it necessary and proper to educate regularly its experienced workforce in the danger of catenary wires. To argue that the general public, or in this case, two teenage boys, should fully appreciate the dangers of getting close to a catenary wire is ridiculous. The jury heard the evidence on continual training by Norfolk Southern and Amtrak. The jury saw this defense for what it was: an attempt to hold these plaintiffs, and the public, to a standard that neither defendant applied to its own experienced and educated employees.”

In the first 6 months of 2008, there were a few other reported cases of interest involving electrical accidents. Over the next few weeks these will be commented upon here.

A construction site can be dangerous. One contractor may set up a dangerous situation and a worker can be injured or killed by electrocution. If the person injured or killed was on the job, then he will be covered by workers compensation. The advantage of a workers compensation claim is that the injury is covered with no need to show that anyone was at fault or negligent, and the worker is covered even if the worker was negligent. The disadvantage is that the amount paid out is low, and the statute is a bar to any additional claim against the employer.

There can be additional claims, beyond the workers comp claim, against other companies in the case of a job site injury.

For example, the injury could have been caused by dangerous equipment. This is called a products liability claim.

In addition, there can be an Employers Liability Act claim (sometimes called an Employers Liability Law claim). Oregon law provides that the ELA law applies generally as follows.

Before Employer’s Liability Act can be made basis of claim for relief by injured worker suing defendant other than employer of worker, defendant must be in charge of or have responsibility for work involving risk or danger in either (a) situation where defendant and plaintiff’s employer are simultaneously engaged in carrying out work on common enterprise, or (b) situation in which defendant retains right to control or actually exercises control as to manner or method in which risk-producing activity is performed. Miller v. Georgia-Pacific, 294 Or 750, 662 P2d 718 (1983)

Here is the general provision requiring every care, even when expensive:

Oregon Revised Statutes 654.305 Protection and safety of persons in hazardous employment generally. Generally, all owners, contractors or subcontractors and other persons having charge of, or responsibility for, any work involving a risk or danger to the employees or the public shall use every device, care and precaution that is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices.

In applying the ORS 654.305 requirements, “Public” includes worker whose employer is engaged in common enterprise with in-charge third party. Trout v. Liberty Northwest Ins. Corp., 154 Or App 89, 961 P2d 235 (1998).

All owners and companies involved must comply with the ELA safety requirements:

Oregon Revised Statutes 654.310 Places of employment; compliance with applicable orders, rules. All owners, contractors, subcontractors, or persons whatsoever, engaged in the construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure, or in the erection or operation of any machinery, or in the manufacture, transmission and use of electricity, or in the manufacture or use of any dangerous appliance or substance, shall see that all places of employment are in compliance with every applicable order, decision, direction, standard, rule or regulation made or prescribed by the Department of Consumer and Business Services pursuant to ORS 654.001 to 654.295, 654.412 to 654.423 and 654.750 to 654.780.
Oregon Revised Statutes 654.315 Persons in charge of work to see that ORS 654.305 to 654.336 are complied with. The owners, contractors, subcontractors, foremen, architects or other persons having charge of the particular work, shall see that the requirements of ORS 654.305 to 654.336 are complied with.
Oregon Revised Statutes 654.320 Who considered agent of owner. The manager, superintendent, foreman or other person in charge or control of all or part of the construction, works or operation shall be held to be the agent of the employer in all suits for damages for death or injury suffered by an employee.

The law is well established that there are 3 ways a company can have liability for an injury on the job: To recover under Employer’s Liability Act against person other than injured worker’s employer, injured worker must establish that defendant had

• actual charge of plaintiff’s work; or
• had right to control manner in which plaintiff performed that work; or
• that defendant and plaintiff’s employer were engaged in work on common enterprise.

Torres v. US National Bank of Oregon, 65 Or App 207, 670 P2d 230 (1983), Sup Ct review denied; Quackenbush v. PGE, 134 Or App 111, 894 P2d 535 (1995), Sup Ct review denied; Moe v. Eugene Zurbrugg Construction Co., 202 Or App 577, 123 P3d 338 (2005).

If you or a loved one had a serious injury or death on the job, you should consider whether additional companies, beyond the employer, have liability. If a free consultation would help you evaluate additional claims, see the contact page.

The minimum clearance from a high voltage power line to the ground is 18.5 feet under the National Electrical Safety Code. See rules 232 and 234. If the installer makes a mistake, the power company lines can be too close. See for example the official findings after a Kentucky electrical accident: www.psc.state.ky.us/order_vault/Orders_1989/198900258_09191989.pdf

Also, tree growth can hide power lines. See National Electrical Safety Code Rule 218 on tree trimming.

As a consequence of the cheaper cost (and lighter weight) of aluminum ladders, several workers are killed by electrocution every year in the United States.

A government study pointed out, “Ladder contacts with power lines usually occurred during erection, lowering, or relocation of the ladder.” A typical case: the power lines are obscured by nearby trees, the wind is blowing, someone is painting a small apartment building and needs to move the ladder. To work quickly, the ladder is left extended while moving it. The ladder tilts or is blown, and touches the power line. The electric shock instantly kills or maims the worker.

In a North Carolina accident,

“The victim and his coworkers were painting several two-story townhouses. While the worker was repositioning his 28-foot metal extension ladder (which was extended to 26 feet), the ladder contacted the overhead power line located approximately 16 feet from the painting operation … . Several seconds later, the foreman heard a buzzing sound and saw the victim gripping his ladder before falling to the ground. The victim was pronounced dead in the hospital emergency room.”

Under the laws of some states and some Federal laws, the employer and those engaged in a common enterprise have a duty to use safe equipment. Can anyone believe that aluminum ladders near high voltage lines are safe, just because there is a warning? One government study recommends

“Employers, workers, general contractors, and ladder manufacturers should take the steps outlined in the following sections to protect workers while working around overhead power lines. Many of these steps are required or suggested by Occupational Safety and Health Administration (OSHA) regulations. … Eliminate the use of metal ladders near energized overhead power lines.”

Even a 28 foot aluminum ladder is long enough to contact a power line sagging to 18.5 feet off the ground. It seems to me that the aluminum extension ladders should never be sold, because they will end up being used in the wrong place. If you buy a ladder, please buy fiberglass and ensure that your ladder will never be part of a devastating accident.